Doe v. United States

United States District Court, D. Kansas

July 23, 2018

JOHN DOE VJ, Plaintiff,v.UNITED STATES OF AMERICA and MARK WISNER, Defendants.

MEMORANDUM AND ORDER

CARLOS
MURGUIA UNITED STATES DISTRICT JUDGE

Plaintiff
John Doe VJ brings this case against defendants United States
of America and Mark Wisner, pursuant to the Federal Tort
Claims Act (“FTCA”), 28 U.S.C. §§
1346(b), 2671 and 38 U.S.C. § 7316(a), (f), alleging
that Wisner conducted improper and/or unnecessary physical
examinations of plaintiff and elicited unnecessary private
information. Plaintiff also alleges state law claims. This
matter is before the court on defendant United States of
America's Motion to Dismiss (Doc. 7). Defendant argues
that plaintiff's complaint should be dismissed for lack
of subject matter jurisdiction and because it fails to state
a claim under Federal Rules of Civil Procedure 12(b)(1) and
(6). For the reasons set forth below, the court grants
defendant's motion in part and denies it in part.

Plaintiff
is a veteran who sought treatment at the Dwight D. Eisenhower
VA Medical Center (“VA”) located in Leavenworth,
Kansas. Wisner treated and provided medical care for
plaintiff. Wisner was a physician's assistant for the VA,
and is a defendant in more than ninety pending civil suits
before this court.

The
claims in this case are similar to claims in a number of
other cases this court has considered. See, e.g.,
Anasazi v. United States, No. 16-2227, 2017 WL
2264441, at *1-*2 (D. Kan. May 23, 2017); Doe D. E. v.
United States, No. 16-2162, 2017 WL 1908591, at *1-*2
(D. Kan. May 10, 2017). The court will not repeat the details
of them here. Highly summarized, they are: (1) Count I:
Negligence - Medical Malpractice; (2) Count II: Negligent
Supervision, Retention and Hiring; (3) Count III: Battery;
and (4) Count IV: Invasion of Privacy.

Likewise,
the court has set forth the governing legal standards in a
number of other cases involving the same parties and similar
claims. The court does not repeat them here, but applies them
as it has in the past. See, e.g., Anasazi,
2017 WL 2264441, at *2; Doe D. E., 2017 WL 1908591,
at *2.

Scope
of Employment

Under
the FTCA, the United States has waived its sovereign immunity
for injuries caused by the “negligent or wrongful act
or omission” of a federal government employee while
that employee is “acting within the scope of his office
or employment, under circumstances where the United States,
if a private person, would be liable to the claimant in
accordance with the law of the place where the act or
omission occurred.” 28 U.S.C. § 1346(b).

This
court has repeatedly held that plaintiffs with similar
allegations to those here have sufficiently alleged that
Wisner's conduct was within the scope of his employment.
See, e.g., Doe BF v. United States, No.
17-2088, 2017 WL 4355577, at *4-*5 (D. Kan. Oct. 2, 2017);
Almquist v. United States, No. 17-2108, 2017 WL
4269902, at *4-*5 (D. Kan. Sept. 25, 2017); Anasazi,
2017 WL 2264441, at *4; Doe D. E., 2017 WL 1908591,
at *4. The court also has held that plaintiffs with similar
allegations have presented plausible claims that the VA
Immunity Statute applies, allowing them to pursue remedies
under the FTCA for claims arising out of a battery. See,
e.g., Doe BF, 2017 WL 4355577, at *5;
Almquist, 2017 WL 4269902, at *5; Anasazi,
2017 WL 2264441, at *5; Doe D. E., 2017 WL 1908591,
at *4. The court likewise allows plaintiff to proceed in this
case.

Statute
of Repose

Defendant
claims that at least some of plaintiff's claims are
barred by Kansas's four-year statute of repose.
See Kan. Stat. Ann. § 60-513(c) (stating that,
with respect to a “cause of action arising out of the
rendering of or the failure to render professional services
by a health care provider, ” “in no event shall
such an action be commenced more than four years beyond the
time of the act giving rise to the cause of action”).
Plaintiff disagrees, raising four arguments in opposition to
defendant's position: (1) Section 60-513(c) does not
apply to plaintiff's claims because Wisner was not a
“health care provider”; (2) In any event, §
60-513(c) does not apply to plaintiff's claim for
battery; (3) The FTCA's administrative process tolls the
statute of repose; and (4) Equitable estoppel tolls the
statute of repose.

In this
case, the impact of these rulings is that some of
plaintiff's claims may be barred by the statute of
repose. In his complaint, plaintiff alleges that he saw
Wisner “on several occasions from 2013 and 2014.”
Taking these allegations as true, some of plaintiff's
claims may have happened before September 12, 2013, which was
four years before plaintiff filed an administrative claim.
Any such claims are therefore barred by the statute of
repose.

Count
II - Negligent Supervision, Hiring, and
Retention

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;The
court has previously dismissed other plaintiffs&#39; claims
for negligent hiring and retention based on the discretionary
function exception to the FTCA. See, e.g.,
Anasazi, 2017 WL 2264441, at *8-*9; Doe D.
E., 2017 WL 1908591, at *8. This outcome remains
appropriate despite plaintiff's argument that the VA had
mandatory duties under ...

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